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Tuesday, May 1, 2007

Behind Blue Eyes: Not the Chief Justice We Bargained For

In an article in The American Prospect last week, Simon Lazarus assessed the first two years of the Roberts Court, concluding that Roberts -- far from being the consensus-builder he promised to be -- has presided over an increasingly polarized Court:

Roberts himself wants the public to understand that he is intent on steering away from the ideological, polarized warfare of the Rehnquist era and toward a new era of “consensus.” ... And yet…, there is little evidence that Roberts has tried particularly hard to lead the way toward any such synthesis. On the contrary, at least in big, controversial cases, the new Court is, if anything, more polarized than Rehnquist’s was.

Roberts has also touted his judicial modesty and deference to the elected branches of government. This boast, which may have helped convince many Democrats to vote for his confirmation, has also proven to be ephemeral. Lazarus explained:

In virtually every politically charged case, Roberts’ votes have been starkly at odds with his vows of modesty and democratic deference. … Roberts joined Scalia and Thomas in dissent from the Court’s 6-3 decision to invalidate former Attorney General John Ashcroft’s attempt to nullify, by regulation, Oregon’s physician-assisted suicide statute. … [thus attempting to] impose his side of that value judgment on the people of Oregon.

Six months later, … the conservative bloc [including Roberts] … brushed aside traditional federal executive an congressional prerogatives with the same indifference …. In one case, Scalia scrapped Clean Water Act wetlands-protection rules reaffirmed by five presidents, including George W. Bush, as “entrenched executive error.” In the second decision, Alito … nullified protections for beneficiaries of federal entitlement programs that, he acknowledged, “a majority of both housesintend.”

It is likely that the opinions Roberts writes and joins this term will be similarly contrary to his rhetoric of consensus and respect for the other branches of government. In important racial integration case pending before the Court, for example the prognosis is not good, and the Roberts Court stands ready to undo the ideals of racial equality expressed more than fifty years ago in Brown v. Board of Education:

It would be hard to conjure a matter in which the result desired by conservatives – overturning local school boards’ pro-integration policies – clashes more starkly with conservative judicial philosophy. But in the Supreme Court last December, the emboldened conservative justices seemed unfazed by [the lower court judge’s] fidelity to strict construction, original meaning, respect for local autonomy, and deference to democratic decisions. …

The most noteworthy signal from the … oral argument is … the ease with which the conservative justices, in order to reach a result that fits their political and policy agendas, blew right past every jurisprudential credo to which they and their comrades in arms have long asserted fidelity. If they will do it is this case, they can – and likely will – do it in any socially or politically important case.

Lazarus went on to criticize progressive groups for not calling out Roberts and other conservative jurists on their “activism” and hypocrisy. Alliance for Justice has will continue to call out Roberts and other conservative judges for their failure to adhere to the tenets they claim to follow -- particularly when they deceive the Senate and the public during the confirmation process into believing they were something other than the kinds of activist judges they repudiated during the confirmation process.